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Facts ignored in targeting Record

Facts ignored in targeting Record

Staff writer

Documents newly obtained under the Kansas Open Records Act reveal that Marion police ignored key facts in targeting this newspaper and this writer in simultaneous raids Aug. 11 on the newspaper and the homes of its co-owners and Marion’s vice mayor.

Emails exchanged among key figures in the investigation reveal that police sprang into action Aug. 7, after receiving a report from officer Zach Hudlin indicating that a document about a local restaurant owner’s driving record had been viewed online by Record reporter Phyllis Zorn.

Ignored in evaluating Hudlin’s note was a clear statement he made that the document had been viewed by Zorn on Aug. 4 — two full days after a copy already had been provided to her and Vice Mayor Ruth Herbel by Pam Maag, a former friend of restaurant owner Kari Newell.

The document listed steps Newell would have to take to reinstate her driver’s license, including a requirement that she install an anti-drinking ignition interlock.

She had lost her license more than a decade earlier after failing to follow through on an agreement regarding a drunken driving conviction. She admittedly drove illegally, without a license, after that.

Both Herbel and Zorn received an electronic image of the document from Maag on Aug. 2. Neither did anything other than notify authorities.

Upon learning two days later that Newell would be attempting to obtain a catering liquor license, Herbel provided a copy to City Administrator Brogan Jones and urged police to investigate whether this could interfere with Newell’s license request.

Unaware of Herbel’s note, the newspaper later that same day notified Police Chief Gideon Cody and Sheriff Jeff Soyez that it had received an image of the document, had verified its legitimacy, but did not plan to publish anything about it.

The newspaper explained that it had concluded that the document probably was being used by Newell’s estranged husband to argue that he, rather than she, should receive the couple’s vehicles in a pending divorce settlement.

The Record told both the police chief and the sheriff that it had verified the document’s legitimacy.

That verification involved Zorn contacting the Department of Revenue on Aug. 4, two days after receiving the document, to learn how any citizen legally and freely could view the document online.

Zorn followed those instructions and viewed the document Aug. 4 but did not download or print a copy of it.

Her notes about how she verified the document were written on the newspaper’s only printout of what Maag had provided. The printout —automatically dated Aug. 2, two days before the Aug. 4 access Hudlin had noted in his report —was lying in plain view on editor and publisher Eric Meyer’s desk during the Aug. 11 police raid but was not seized by the five officers who searched the newsroom. Seven officers searched his home that same day.

According to emails obtained under the Open Records Act, Jones had decided after reading Herbel’s note Aug. 4 not to have Cody investigate the matter.

Cody did not read the Record’s note until Aug. 7 and at that point ordered Hudlin to ask the Department of Revenue whether Newell’s driving record had been viewed online.

Hudlin’s report stated that an unnamed person in the Department of Revenue’s information technology department “told me that on Friday, August 4, 2023, the information was accessed by Phyllis Zorn and three minutes later by Kari Newell.”

Subsequent investigation revealed that the “Kari Newell” access was actually a repeat of Zorn’s access, with the name automatically pre-filled by the online form Zorn used.

Even though the Record already had explained that it had verified that the record was not a forgery, Cody immediately began considering charges not against Maag or Zorn but against Herbel and this writer, Record editor and publisher Eric Meyer — two people frequently targeted by Mayor David Mayfield and others for challenging questionable city actions.

In what appears to be his first of several messages to County Attorney Joel Ensey, Cody contended that Herbel might be guilty of abuse of office by “using protected information from a DMV record to unfairly deny a liquor license without legitimate or justifiable means.”

He attempted to include Meyer in the supposed crimes under what he described as “vicarious liability or secondary liability.”

He cited the Record’s email to him, which included a reference to the Record having consulted an attorney, whose opinion was that the information about Newell’s license status was a public document, freely viewable by anyone. He never followed up on the letter’s invitation to discuss the matter further.

He nevertheless told Ensey:

“The email reveals the editor was aware that the document being accessed was protected by the (federal Driver Privacy and Protection Act) and did not take appropriate steps to prevent the unauthorized access or address the situation. This could be seen as negligence or complicity.

“Whether he has taken a supervisor responsibility or failed to act makes him a co-conspirator in this crime. Furthermore, his untruth to how he obtained the document leads me to believe (he’s) covering up something he knew to be a crime. Otherwise, there would be no reason to lie.”

Around the same time, he met with Newell and, according to Newell, informed her that the newspaper had “stolen” her records and given them to Herbel, who then plastered them all over social media. Newell repeated those allegations at a city council meeting Aug. 7 even though, after the meeting, she admitted to a Record reporter that she thought they were false.

She later told reporters that Cody, who had made flirtatious advances to her, later told her to delete all text messages they had exchanged.

As his work on the case progressed, Cody prepared multiple search warrant applications and criminal offense reports, including several accusing unlawful use of a communication facility, even though that law applies only to communications regarding human trafficking, commercial sexual exploitation of a child, and promoting prostitution.

As drafts of the documents were circulated among various law enforcement officers, sheriff’s investigator Aaron Christner asked to have references to him removed from some of the documents because Christner had not participated in the investigation.

At one point, released emails reveal, Soyez suggested to Cody that his raid should include the home Meyer shared with his 98-year-old mother because Meyer often worked from home while helping care for her.

In an after-action document obtained under the Open Records Act, state fire investigator Chris Mercer, one of two officers stationed at the Meyers’ home for two hours before five other officers arrived, characterized Joan Meyer as confused and not properly cared for by Eric Meyer. Surveillance video showing what he characterized as confused behavior is available at http://mnks.us/joan.

Mercer also reported, using direct quotes, that Eric Meyer had confessed when in reality all Meyer had been doing was reading a search warrant to an attorney over the phone. Herbel has accused Hudlin of making a similar misstatement of confession in his after-action report on the raid on her house.

The other officer initially stationed at the Meyers’ home, sheriff’s Sergeant Matt Regier, has resigned to join the Harvey County sheriff’s department.

Sheriff’s investigator Steve Janzen, who went to the home among the second group of officers but apparently declined to enter, earlier resigned, as well.

He earlier had been part of the raid at the Record, blocking employees from entering through the back door, where police had arrived.

Other emails suggest that the raid originally was planned for Aug. 10 and that a Kansas Bureau of Investigation agent was aware of that fact but that the raids were postponed until Aug. 11 because Ensey was not in his office Aug. 10 to process search warrant applications.

Ensey has declined to comment on the case but has said in other publications that the county attorney is not required to approve warrant applications and that he gave them only cursory attention Aug. 11 before deciding Aug. 14that they were insufficient and asking Aug. 16, a day after the newspaper had been forced to publish without most of its equipment, that all items seized be returned.

Ensey and District Court Magistrate Judge Laura Viar, who both approved and notarized the search warrant applications even though Cody may not have appeared personally before her to sign them, both have been asked by disciplinary bodies to submit explanations in advance of hearings expected later this fall.

Last modified Oct. 25, 2023

 

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